NO SMOKE WITHOUT GERMANS; CALLING COWS TO MIND

No smoke without Germans

In the European Court of Justice this morning Advocate General Philippe Léger gave his Opinion in Case C-380/03 Federal Republic of Germany v European Parliament and Council of the European Union. According to the ECJ's Press Release, the AG's view is that the legal basis for the Tobacco Advertising Directive is appropriate for putting an end to divergence in the national rules on tobacco advertising, which was contributing significantly to the fragmentation of the internal market.

Germany is seeking annulment of the bits of the directive that deal with the advertising and sponsorship of tobacco products in media other than television, claiming that the choice as a legal basis of Article 95 of the EC Treaty, which authorises the Community to adopt measures for the approximation of the national provisions which have as their object the establishment and functioning of the internal market, is incorrect.

This is the third action brought by Germany for annulment of a directive relating to tobacco products, Germany having brought actions for annulment of Directive 98/43 (which led to the annulment of that directive in 2000) and of Directive 2001/37 (this action being ruled inadmissible).

The IPKat awaits the final judgment which, he suspects, will accept the AG's recommendation. This Directive has slipped on enough banana peels up till now but seems to secured its firm footing.


Calling cows to mind

Also from Luxembourg today is the decision of the Court of First Instance (CFI) in Case T-153/03, Inex SA v OHIM, Robert Wiseman & Sons Ltd. Wiseman applied to register as a Community trade mark a ‘cow hide’ picture (right) in respect of milk, dairy and drinks-based goods and services in Classes 29, 32 and 39.

Inex opposed in relation to Wiseman’s milk products, citing its earlier Benelux registration of the sign depicted on the left, registered for milk and dairy products in Classes 29 and 30, alleging a likelihood of confusion. The Opposition Division and the Board of Appeal had no difficulty in dismissing the opposition. Nor, on appeal, did the CFI. Despite the fact that both signs might call to mind the notion of a cow, there was no serious similarity between them.

The IPKat notes that Wiseman’s application, filed on 1 April 1996, has now been in the pipeline for more than 10 years - and there’s still the prospect of an appeal to the ECJ. It’s scandalous that a pathetically weak non-starter of a case should be allowed to waste so much time and effort. Merpel agrees that this opposition was just plain silly; she's most impressed at the dignified manner in which the CFI treated it.

Cow hide here
Rawhide here (not to be missed, says the IPKat)